Attorney General Patrick Morrisey today announced filing for Supreme Court review of West Virginia policies that don’t cover sex transition surgery through Medicaid.
The Attorney General’s Office wants the justices to review a narrowly-decided appeals court ruling that West Virginia discriminates unfairly against transgender people because the state’s policies allow coverage for the same procedures to other people for different medical reasons.
Morrisey announced the Supreme Court appeal today during a news conference in Bridgeport. This is the second appeal filed by the Attorney General on transgender issues in the past couple of months. The other focuses on a West Virginia law intended to prevent transgender athletes from participating on girls teams for contact sports.
It’s not certain the Supreme Court will take the case, but Morrisey — who is the Republican nominee for governor — said West Virginia’s policies should stand.
“Under Medicaid, states have wide discretion to determine what procedures their programs can cover based on cost and other concerns,” Morrisey said. “Our state should have the ability to determine how to spend our resources to care for the vital medical needs of our citizens.”
Morrisey contended, “Just one single sex-reassignment surgery can cost tens of thousands of dollars — taxpayers should not be required to pay for these surgeries under Medicaid.”
In an 8-6 ruling in late April, the Fourth Circuit U.S. Court of Appeals ruled that West Virginia’s Medicaid program discriminates on the basis of gender identity and sex in violation of the Equal Protection Clause.
Dissenting judges countered, “In the majority’s haste to champion plaintiffs’ cause, today’s result oversteps the bounds of the law. The majority asserts that the challenged exclusions use medical diagnosis as a proxy for transgender persons, despite the complete lack of evidence for this claim.”
The case focuses on coverage available under the state’s Medicaid plan, the federal-state program that provides health insurance for low-income people. West Virginia’s Bureau for Medical Services administers the state’s Medicaid Program and receives funding from the U.S. Department of Health and Human Services.
West Virginia’s Medicaid program covers some gender-affirming care, including counseling, office visits, hormones and lab work. It does not, however, cover gender-affirming surgery — “regardless of medical necessity.” The coverage exclusion was adopted around 2004 and has been maintained since without review.
However, the federal case notes that West Virginia partially or fully covers procedures for diagnoses that are not gender dysphoria.
Those include mastectomies, breast-reduction surgery, chest reconstruction following a mastectomy, hysterectomies, removal or creation of the vagina and removal or creation of male reproductive organs.
The West Virginia plaintiff, Shauntae Anderson, began taking birth control pills for estrogen before going on Medicaid. Once she was on Medicaid, her doctors recommended hormone replacement therapy, and she started that in 2019.
At the time of the appeals court review, doctors had not yet recommended her for surgery; to the extent they have discussed it with her, they have simply said that Medicaid does not cover the surgeries, so “there is nothing that they can do about it.” according to the federal case.
Anderson argued in the federal lawsuit that the coverage exclusion discriminates against transgender people in violation of the Fourteenth Amendment, the Medicaid Act and the Affordable Care Act. The Equal Protection Clause of the Fourteenth Amendment forbids a state from denying “to any person within its jurisdiction the equal protection of the laws.”
Morrisey today characterized the state’s position as “saying no to the transsexual surgery, and it’s a state that’s trying to ensure we’re covering people with heart disease, with diabetes and all sorts of medical conditions. We’re not a rich state. We can’t afford to do everything, and that’s one of the challenges we have with this mandate. There’s only so much money to go around, and spending money on some treatments necessarily takes it away from others.”